DAR File No. 27472

Workforce Services, Workforce Information and Payment Services

R994-405

Ineligibility for Benefits

NOTICE OF PROPOSED RULE

DAR File No.: 27472
Filed: 10/01/2004, 07:44
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

This proposed amendment updates the rules to conform to current practices and the changes in technology and the law.

Summary of the rule or change:

The Department is in the process of rewriting all of its rules to insure they conform to current practices and the law. Some rules refer to antiquated practices before the advent of telephone claims and computers. Some sections have been moved and or renumbered. It is also hoped that this rewrite is easier to understand and to make the rules consistent. There are no substantive changes to procedure or eligibility contemplated by this rule change. (DAR NOTE: The other rules filed for this issue are: the proposed repeal and reenactment of Rule R994-401 under DAR No. 27469; the proposed amendment to Section R994-201-101 under DAR No. 27470; the proposed repeal and reenactment of Rule R994-403 under DAR No. 27471; and the proposed amendment to Section R994-406-505 under DAR No. 27473.)

State statutory or constitutional authorization for this rule:

Subsections 35A-4-502(1)(b) and 35A-1-104(4), and Section 35A-4-405

Anticipated cost or savings to:

the state budget:

There will be no costs or savings to the State budget because this is a federally-funded program and there are no substantive changes being made to this rule. These changes reflect current Department practices.

local governments:

In addition to the reasons stated in relation to the State budget, there will be no costs or savings to local government as this is a federally-funded, state-wide program that does not affect local government.

other persons:

There will be no costs or savings to any person for the reasons stated in relation to the State budget. This amendment does not make any substantive changes to current law or rule.

Compliance costs for affected persons:

There will be no compliance costs to any person for the reasons stated in relation to the State budget. This amendment does not make any substantive changes to current law or rule.

Comments by the department head on the fiscal impact the rule may have on businesses:

This proposed amendment will have no fiscal impact on business as there are no compliance costs and the rule merely reflects current statutory authority.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at spixton@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/15/2004

This rule may become effective on:

11/16/2004

Authorized by:

Raylene G. Ireland, Executive Director

RULE TEXT

R994. Workforce Services, Workforce Information and Payment Services.

R994-405. Ineligibility for Benefits.

[R994-405-101. Voluntary Leaving - General Information.

A separation is considered voluntary if the claimant was the moving party in ending the employment relationship. A voluntary separation includes leaving existing work or failing to return to work after a layoff, suspension, or period of absence. Failing to renew an employment contract may also constitute a voluntary separation. Two standards must be applied in voluntary separation cases: good cause and equity and good conscience. If good cause is not established, the claimant's eligibility must be considered under the equity and good conscience standard.

]

R994-405-101. Voluntary Leaving (Quit) - General Information.

(1) A separation is considered voluntary if the claimant was the moving party in ending the employment relationship. A voluntary separation includes leaving existing work, or failing to return to work after:

(a) an employer attached layoff which meets the requirements for a deferral under R994-403-108b(1)(c),

(b) a suspension, or

(c) a period of absence initiated by the claimant.

(2) Failing to renew an employment contract may also constitute a voluntary separation.

(3) Two standards must be applied in voluntary separation cases: good cause and equity and good conscience. If good cause is not established, the claimant's eligibility must be considered under the equity and good conscience standard.

[R994-405-301. Failure to Apply for or Accept Suitable Work - General Definition.

(1) The primary obligation of a claimant is to become reemployed. The intent of the unemployment insurance program is to assist people during periods of unemployment when suitable work is not available. However, if suitable work is available the claimant has an obligation to properly apply for and accept offered work.

R994-405-302. Necessary Elements.

To assess a disqualification under this section of the statute, the following elements must be established:

(1) Availability of a Job.

There must be an actual job opening that the claimant could reasonably expect to obtain.

(2) Knowledge.

The claimant must have the opportunity to be informed about the job including the wage, type of work, hours, general location and conditions of the job. The claimant must understand a referral for work is being offered as opposed to a general discussion of job possibilities or labor market conditions. If a job offer is made, it must be clearly communicated as an offer of work.

(3) Control.

The failure of the claimant to obtain the employment must be the result of the claimant's:

(a) failure to accept a referral, or

(b) failure to properly apply for work, or

(c) failure to accept work when offered.

R994-405-303. Provisions for Allowance of Benefits After an Issue is Found to Exist.

Unemployment insurance benefits shall not be denied under Subsection 35A-4-405(3) if any of the following circumstances exist:

(1) The job is not suitable, or

(2) The claimant had good cause for the failure to apply for or accept the job, or

(3) A disqualification would be contrary to equity and good conscience.

R994-405-304. Failure to Accept a Referral.

(1) Definition of a Referral.

If a claimant is told by a Workforce Services representative about the requirements of a job and is given an opportunity to accept or reject the opportunity to apply for the job, the claimant has been offered a referral.

(2) Refusal of a Referral.

A claimant fails to accept a referral when he or she refuses to contact the employer or responds in a negative manner, which prevents or discourages the interviewer from providing the necessary referral information.

(3) Failure to Respond to a Notice from Workforce Services.

Failing to respond to a notice to contact Workforce Services for the purpose of being referred to a specific job is the same as refusing a referral for possible employment. If there was a suitable job opening to which the claimant would have been referred, benefits shall be denied unless good cause is established for not responding as directed, or that the elements of equity and good conscience are established. Good cause, as it applies to Subsection 35A-4-405(3), shall generally be established if it can be shown the claimant was prevented, due to circumstances beyond the claimant's immediate control, from responding as directed. However, a card properly addressed and properly mailed is presumed to be delivered unless returned by the Postal Service to the sender.

R994-405-305. Proper Application.

A proper application for work is established if the claimant does those things normally done by applicants who are seriously and actively seeking work. Generally, the claimant must:

(1) meet with the employer at the designated time and place,

(2) report to the employer dressed and groomed in a manner appropriate for the type of work being sought, and

(3) present no unreasonable conditions or restrictions on acceptance of the available work.

R994-405-306. Failure to Accept an Offer of Work.

An offer of work may be refused by positive language, or by conduct that would prevent or discourage an offer of work. Work is refused when the claimant unnecessarily emphasizes barriers to accepting employment.

R994-405-307. Good Cause.

Good cause for failing to accept available work is established if the work is not suitable or accepting the job would cause hardship. Hardship may not be established unless accepting the employment would result in actual or potential physical, mental, economic, personal or professional harm. Good cause for not accepting a job is also established if the elements that establish good cause for quitting a job are present under Subsection 35A-4-405(1) and Section R994-405-102.

R994-405-308. Equity and Good Conscience.

A claimant shall not be denied benefits for failing to apply for or accept work if a disqualification would be contrary to equity and good conscience, even though good cause has not been established. The elements necessary to establish eligibility under the equity and good conscience standard are:

(1) Reasonableness.

Reasonableness may be established if the claimant is not overly sensitive in determining the suitability of the work and there is some justification or evidence of mitigating circumstances that resulted in the failure to apply for or accept employment. A mitigating circumstance is one that may not be sufficiently compelling to establish good cause, but would motivate a reasonable person to take similar action.

(2) Continuing Attachment to the Labor Market.

The claimant must show evidence of a genuine and continuing attachment to the labor market by making an active and consistent effort to become reemployed. The claimant must have a realistic plan for obtaining suitable employment and show evidence of employer contacts prior to, during and after the week the job in question was available.

R994-405-309. Suitability of Work.

The following elements must be considered in determining the suitability of employment: (1) risk to health and safety, (2) religious or moral convictions, (3) physical fitness, (4) prior experience, (5) prior training, (6) prior earnings, (7) length of unemployment, (8) prospects for securing work in customary occupation, (9) distance of the available work from his residence, (10) working conditions. A suitable job shall include work the claimant has done before which would utilize prior knowledge and training or work in an occupation to which the claimant's skills are adaptable. Work that requires illegal activities, that violates state or federal labor laws, or that is vacant due to a labor dispute, shall not be considered suitable.

(1) Risk to Health and Safety.

Work is not suitable if it presents a risk to a claimant's physical or mental health greater than the usual risks associated with the occupation. If a claimant would be required, as a condition of employment, to perform tasks that would cause or substantially aggravate health problems, the work is not suitable.

(2) Religious or Moral Convictions.

The work must conflict with honestly held religious or moral convictions before a conscientious objection could support a conclusion that the work was not suitable. This does not mean all personal beliefs are entitled to protection. However, beliefs need not be acceptable, logical, consistent or comprehensible to others, or shared with members of a religious or other organized group in order to show the conviction is held in good faith.

(3) Physical Fitness.

The claimant must possess the physical capacity to perform the work. Employment beyond the physical capacity of the claimant is not suitable.

(4) Prior Experience.

If an initial claim or the reopening of a claim is filed following employment at the claimant's highest skill level, work that is not expected to utilize the claimant's highest skill level is not suitable. A worker must be given a reasonable time to seek work that will preserve his or her highest skills and earning potential. However, if a claimant has no realistic expectation of obtaining employment in an occupation utilizing his or her highest skill level, work in related occupations becomes suitable.

(a) After a claimant has filed continuously for 1/3 of the weeks of entitlement, any job similar to work performed during the base period of the claim is suitable even though it may not utilize the claimant's highest skill level.

(b) After a claimant has filed continuously for 2/3 of the weeks of entitlement, any work the claimant could reasonably expect to perform based on the claimant's skills, training, and recent employment history becomes suitable.

(5) Prior Training.

The type of work performed during the claimant's base period is suitable unless there is a compelling circumstance that would prevent returning to work in that occupation. If a claimant has training that would now meet the qualifications for a new occupation, work in that occupation may also be suitable, particularly if the training was obtained, at least in part, while the claimant was receiving unemployment benefits under Department Approval, or the training was subsidized by another government program.

(6) Prior Earnings.

Work is not suitable if the wage is substantially less favorable to the individual than the prevailing wage for similar work in the area, or if it is less than the state or federal minimum wage. The claimant's prior earnings, length of unemployment and prospects of obtaining work are the primary factors in determining whether the wage is suitable. If a claimant's former wage was earned in another area, the prevailing wage is determined by the new area. For the purposes of this subsection, the term "prevailing wage" means the market rate.

(a) At the time of filing an initial claim, work paying less than the highest wage earned by the claimant during his base period or the highest wage for that occupation paid in the area, whichever is lower, is not suitable unless the claimant has no real expectation of being able to find work at that wage. After four weeks of continuous filing, a Department representative may advise the claimant that a job paying any wage earned during the base period is suitable, if the highest wage earned during the base period is not reasonably available.

(b) After a claimant has been filing continuously for a period of time equal to 1/3 of the maximum number of weeks of entitlement, any work paying a wage earned during the base period is suitable.

(c) After filing continuously for 1/2 of the weeks of entitlement, work paying a wage 10% less than the lowest wage earned by the claimant during the base period becomes suitable if this wage is higher than the prevailing wage for that occupation. After filing continuously between 1/2 and 2/3 of the claimant's weeks of entitlement, a claimant must gradually reduce the wage demanded until it reaches the prevailing local wage for work in that occupation.

(7) Length of Unemployment.

Whether a job is suitable depends on the length of time the claimant has been unemployed. A claimant must be allowed time to seek work comparable to the most advantageous base period employment if there is a reasonable expectation of obtaining that type of work. However, as the length of unemployment increases the claimant's demands with respect to earnings, working conditions, job duties and the use of prior training must be systematically reduced unless the claimant has immediate prospects of reemployment.

(8) Prospects of Securing Work In Customary Occupation.

(a) Customary work is work similar to the work performed during the claimant's recent employment history. The Department may not require a modification of the claimant's employment restrictions and wage requirements if it can be shown:

(i) the length of unemployment is less than the time normally required to obtain employment in the claimant's customary occupation, and

(ii) there are reasonable prospects for work in that occupation.

(b) A refusal of work shall not result in a denial of benefits if the claimant has obtained a definite date to begin full-time, permanent employment elsewhere within three weeks.

(9) Distance of the Available Work from the Claimant's Residence.

To be considered suitable, the work must be within customary commuting patterns as they apply to the occupation and area. A claimant's failure to provide transportation within the normal or customary commuting pattern in the area or the failure to utilize alternative sources of transportation when available, does not establish good cause for failing to apply for or accept suitable work.

Work is not suitable if accepting the employment would require a move from the current area of residence unless that is a usual practice in the occupation.

(10) Working Conditions.

Working conditions refers to the provisions of the employment agreement whether express or implied as well as the physical conditions of the work.

(a) Prevailing Conditions.

If the working conditions are substantially less favorable than those prevailing for similar work in the area, the work is not suitable. The purpose of these conditions is to prevent the unemployment compensation system from exerting downward pressure on existing labor standards. It is not intended to increase wages or improve working conditions, but to prevent any compulsion upon workers, through a denial of benefits, to accept work under less favorable conditions than those generally available in the area for similar work.

(b) Similar Work.

The phrase "similar work" used in the statute does not mean "identical work." Similar work is work in the same occupation or a different occupation which requires essentially the same skills.

(c) Prevailing Wage.

For the purposes of this subsection, the term "prevailing wage" means the market rate for the occupation in the area.

(d) Hours of Work.

Claimants are expected to make themselves available for work during the usual hours for similar work in the area. If work periods are in violation of the law or if the hours are substantially less favorable than those prevailing for similar work in the area, the employment is not suitable. However, the hours the claimant worked during his or her base period are generally considered suitable. A claimant's preference for certain hours or shifts based on mere convenience is not good cause for failure to accept otherwise suitable employment.

(e) Labor Disputes or Law Violations.

Work is not suitable if the working conditions are in violation of any state or federal law, or the job opening is due to a strike, lockout or labor dispute. If a claimant was laid off or furloughed prior to the dispute, and an offer of employment is made after the dispute begins by the former employer, it is considered an offer of new work. The vacancy must be presumed to be the result of the labor dispute unless the claimant had a definite date of recall, or recall has historically occurred at a similar time.

R994-405-310. Examples.

(1) Attendance at School or Training Course.

Claimants are expected to seek and accept suitable full-time work even if it would interfere with school or training. Claimants attending school full-time with Department Approval are not required to seek work.

(2) Personal Circumstances.

A claimant may have good cause for failing to obtain employment due to personal circumstances if acceptance of the employment would cause a substantial hardship provided there are no reasonable alternatives. However, if a personal circumstance prevents the acceptance of suitable employment, there is a presumption the claimant is not available for work.

(3) Part-time or Temporary Work.

Part-time or temporary work may be suitable depending on the claimant's work history. If the major portion of a claimant's base period work history consists of part-time or temporary work, then any work that meets the Suitable Work Test, Section R994-405-309, would be considered suitable even if the work is part-time or temporary. If the claimant has no recent history of temporary or part-time work the work may still be considered suitable, particularly if the claimant has been unemployed for an extended period and does not have an immediate prospect of full-time work.

R994-405-311. New Work.

(1) All work is performed under a contract of employment between a worker and an employer whether written, oral or implied. The contract addresses the job duties, as well as the terms and conditions under which the work is to be performed. If the proposed duties, terms, or conditions of the work offered by an employer are not part of an existing contract, the offer is for a new contract of employment and constitutes an offer of new work. The provisions of the Suitable Work Test, Section R994-405-309, apply to offers of new work. A request to perform different duties that are customary in the occupation and that do not result in a loss of skills, wages or benefits, does not constitute an offer of new work, even if those duties are not specified as part of the official job requirements. It may also be customary for workers to perform short term tasks involving different or new duties and when those assignments do not replace the regular duties of the worker, the contract of employment has not been changed.

(2) New Work is defined as:

(a) work offered by an employer for whom the individual has never worked;

(b) reemployment offered by an employer for whom the individual is not working at the time the offer is made, whether the conditions of employment are the same or different from the previous job;

(c) work offered by an individual's present employer involving duties, terms or conditions different from those agreed upon as part of the existing contract of employment.

R994-405-312. Burden of Proof.

(1) Before benefits may be denied, the Department must show: the job was available, the claimant had an opportunity to learn about the conditions of employment, the claimant had an opportunity to apply for or accept the job, and the claimant's action or inaction resulted in the failure to obtain the job. The statute requires that the wage, hours and other conditions of the work shall not be substantially less favorable to the individual than those prevailing for similar work in the area in order to be considered suitable work. The Department has the burden to prove that the work offered meets these minimum standards before benefits can be denied.

(2) When the Department has established the above elements, a disqualification must be assessed unless the claimant can establish that the work was not suitable, that there was good cause for failing to obtain the job, or that a disqualification would be against equity and good conscience.

R994-405-313. Period of Ineligibility.

(1) The disqualification period imposed under Subsection 35A-4-405(3) shall include the week in which the claimant's action or inaction resulted in the failure to obtain employment or the first week the work was available, whichever is later. The disqualification shall continue until the claimant has performed services in bona fide covered employment and earned wages equal to at least six times his or her weekly benefit amount.

(2) A disqualification may be assessed if the claimant refused an offer of suitable work prior to the effective date of the claim if the refusal was directly related to the claimant's unemployment. For example: If the claimant's job is eliminated or changed so substantially as to constitute new work, the separation is a layoff. However, if the new work offered by the regular employer is suitable, a disqualification may be assessed in accordance with Subsection 35A-4-405(3) of the Act.

(3) Disqualifications assessed in a prior benefit year shall continue into the new benefit year until purged by sufficient wages earned in subsequent bona fide covered employment.

R994-405-314. Notification.

In addition to notification to the claimant's most recent employer consistent with Subsection 35A-4-401(6), all employers directly involved in a claimant's failure to properly apply for or accept employment shall be notified of the determination made under Subsection 35A-4-405(3) including applicable appeal rights.

]

R994-405-301. Failure to Apply for or Accept Suitable Work.

(1) The primary obligation of a claimant is to become reemployed. The intent of the unemployment insurance program is to assist people during periods of unemployment when suitable work is not available. However, if suitable work is available, the claimant has an obligation to properly apply for and accept offered work.

(2) A claimant will not be disqualified for failing to apply for or accept suitable work unless all of the following elements are established:

(a) Availability of a Job.

There must be an actual job opening the claimant could reasonably expect to obtain.

(b) Knowledge.

It must be shown that the claimant knew, or should have known, about the job including the wage, type of work, hours, general location, and conditions of the job. The claimant must understand a referral for work is being offered as opposed to a general discussion of job possibilities or labor market conditions. If a job offer is made, it must be clearly communicated as an offer of work.

(c) Control.

The failure of the claimant to obtain the employment must be the result of the claimant's own actions or behavior in failing to:

(i) accept a referral, or

(ii) properly apply for work, or

(iii) accept work when offered.

(3) If the elements of Subsection (2) above have been met, benefits will be denied under Subsection 35A-4-405(3) unless:

(a) the job is not suitable;

(b) the claimant had good cause for refusing a referral, the failure to apply for or accept the job; or

(c) a denial of benefits would be contrary to equity and good conscience.

R994-405-302. Failure to Accept a Referral.

(1) Definition of a Referral. A referral is when the department provides information about a job opening to the claimant and the claimant is given the opportunity to apply. The information must meet the requirements of R994-405-301(2)(b).

(2) Failure to Accept a Referral. A claimant fails to accept a referral when he or she prevents or discourages the Department from providing the necessary referral information. Failing to respond to a notice to contact the Department for the purpose of being referred to a specific job is the same as refusing a referral for possible employment.

(3) If there was a suitable job opening to which the claimant would have been referred, benefits will be denied unless good cause is established for not responding as directed, or the elements of equity and good conscience are established.

R994-405-303. Proper Application for Work.

A proper application for work is established if the claimant does those things normally done by applicants who are seriously and actively seeking work. Generally, the claimant must:

(1) meet with the employer at the designated time and place,

(2) report to the employer dressed and groomed in a manner appropriate for the type of work being sought, and

(3) present no unreasonable conditions or restrictions on acceptance of the available work.

R994-405-304. Failure to Accept an Offer of Work.

It will be considered to be a refusal of new work if the claimant engages in conduct which discourages an offer of work, places unreasonable barriers to employment, or accepts an offer of new work but imposes unreasonable conditions which causes the offer to be rescinded. A refusal of work will not result in a denial of benefits if the claimant has accepted a definite offer of full-time employment which is expected to start within three weeks or has a date of recall to full-time work expected to begin within three weeks.

R994-405-305. Suitability of Work.

(1) A claimant must be allowed time to seek work comparable to the most advantageous base period employment if there is a reasonable expectation of obtaining that type of work.

(2) The unemployment compensation system is not intended to exert downward pressure on existing labor standards, nor is it intended to allow claimants to restrict availability to jobs with increased wages or improved working conditions.

(3) Workers should not feel compelled, through a threatened or potential denial of benefits, to accept work under less favorable conditions than those generally available in the area for similar work. The phrase "similar work" does not mean "identical work." Similar work is work in the same occupation or a different occupation which requires essentially the same skills.

R994-405-306. Elements to Consider in Determining Suitability.

A claimant is not required to accept an offer of new work unless the work is suitable. Whether a job is suitable depends on the length of time the claimant has been unemployed. As the length of unemployment increases, the claimant's demands with respect to earnings, working conditions, job duties, and the use of prior training must be systematically reduced unless the claimant has immediate prospects of reemployment. The following elements must be considered in determining the suitability of employment:

(1) Prior Earnings.

Work is not suitable if the wage is less than the state or federal minimum wage, whichever is applicable, or the wage is substantially less favorable to the claimant than prevailing wages for similar work in the locality.

The claimant's prior earnings, length of unemployment and prospects of obtaining work are the primary factors in determining whether the wage is suitable. If a claimant's former wage was earned in another geographical area, the prevailing wage is determined by the new area.

(a) During the first one-third of the claim, work paying at least the highest wage earned during or subsequent to the base period, or the highest wage available in the locality for the claimant's occupation, whichever is lower is suitable, but only if there is a reasonable expectation that work can be obtained at that wage.

(b) After a claimant has received one-third of the MBA for his or her regular claim, any work paying a wage that is equal to or greater than the lowest wage earned during the base period is suitable, as long as that wage is consistent with the prevailing wage standard.

(c) After a claimant has received two-thirds of the MBA for his or her regular claim, any work paying the prevailing wage in the locality for work in any base period occupation is suitable.

(2) Prior Experience.

If an initial claim or the reopening of a claim is filed following employment at the claimant's highest skill level, work that is not expected to utilize the claimant's highest skill level is not suitable. A worker must be given a reasonable time to seek work that will preserve his or her highest skills and earning potential. However, if a claimant has no realistic expectation of obtaining employment in an occupation utilizing his or her highest skill level, work in related occupations becomes suitable.

(a) After the claimant has received one-third of the MBA for his or her regular claim, work in any of the occupations in which the claimant worked during the base period is considered suitable.

(b) After the claimant has received two-thirds of the MBA for his or her regular claim, any work that he or she can reasonably perform consistent with the claimant's past experience, training and skills is considered suitable.

(3) Working Conditions.

Working conditions refers to the provisions of the employment agreement whether express or implied as well as the physical conditions of the work. If the working conditions are substantially less favorable than those prevailing for similar work in the area, the work is not suitable. Working conditions include the following:

(a) Hours of Work.

Claimants are expected to make themselves available for work during the usual hours for similar work in the area. If work periods are in violation of the law or if the hours are substantially less favorable than those prevailing for similar work in the area, the employment is not suitable. However, the hours the claimant worked during his or her base period are generally considered suitable. A claimant's preference for certain hours or shifts based on mere convenience is not good cause for failure to accept otherwise suitable employment.

(b) Benefits in Addition to Wages.

Work is not suitable if "fringe benefits" such as life and group health insurance; paid sick, vacation, and annual leave; provisions for leaves of absence and holiday leave; pensions, annuities, and retirement provisions; or severance pay are substantially less favorable than benefits received by the claimant during the base period or than those prevailing for similar work in the area, whichever is lower.

(c) Labor Disputes or Law Violations.

Work is not suitable if the working conditions are in violation of any state or federal law, or the job opening is due to a strike, lockout, or labor dispute. If a claimant was laid off or furloughed prior to the labor dispute, and the former employer makes an offer of employment after the dispute begins, it is considered an offer of new work. The vacancy must be presumed to be the result of the labor dispute unless the claimant had a definite date of recall, or recall has historically occurred at a similar time.

(4) Prior Training.

The type of work performed during the claimant's base period is suitable unless there is a compelling circumstance that would prevent returning to work in that occupation. If a claimant has training that would now meet the qualifications for a new occupation, work in that occupation may also be suitable, particularly if the training was obtained, at least in part, while the claimant was receiving unemployment benefits under Department approval, or the training was subsidized by another government program.

(5) Risk to Health and Safety.

Work is not suitable if it presents a risk to a claimant's physical or mental health greater than the usual risks associated with the occupation. If a claimant would be required, as a condition of employment, to perform tasks that would cause or substantially aggravate health problems, the work is not suitable.

(6) Physical Fitness.

The claimant must be physically capable of performing the work. Employment beyond the claimant's physical capacity is not suitable.

(7) Distance of the Available Work from the Claimant's Residence.

To be considered suitable, the work must be within customary commuting patterns as they apply to the occupation and area. A claimant's failure to provide his or her own transportation within the normal or customary commuting pattern in the area, or failure to utilize alternative sources of transportation when available, does not establish good cause for failing to apply for or accept suitable work. Work is not suitable if accepting the employment would require a move from the current area of residence unless that is a usual practice in the occupation.

(8) Religious or Moral Convictions.

The work must conflict with sincerely held religious or moral convictions before a conscientious objection could support a conclusion that the work was not suitable. This does not mean all personal beliefs are entitled to protection. However, beliefs need not be acceptable, logical, consistent, or comprehensible to others, or shared with members of a religious or other organized group in order to show the conviction is held in good faith.

(9) Part-time or Temporary Work.

Part-time or temporary work may be suitable depending on the claimant's work history. If the major portion of a claimant's base period work history consists of part-time or temporary work, then any work which is otherwise suitable would be considered suitable even if the work is part-time or temporary. If the claimant has no recent history of temporary or part-time work, the work may still be considered suitable, particularly if the claimant has been unemployed for an extended period and does not have an immediate prospect of full-time work.

R994-405-307. New Work.

(1) All work is performed under a contract of employment between a worker and an employer whether written, oral, or implied. The contract addresses the job duties, as well as the terms and conditions under which the work is to be performed. A substantial change in the duties, terms, or conditions of the work, not authorized by the existing employment contract, is in effect a termination of the existing contract and the offer of a new contract and constitutes a separation and an offer of new work.

(2) The provisions of R994-405-310 are used to determine if the new contract constitutes suitable work. A request to perform different duties that are customary in the occupation and that do not result in a loss of skills, wages, or benefits, does not constitute an offer of a new work, even if those duties are not specified as part of the official job requirements. The contract of employment has not changed if it is customary for workers to perform short-term tasks involving different or new duties and those assignments do not replace the regular duties of the worker. It is not considered to be a termination of the existing contract and an offer of new work if the claimant fails to return after a vacation, with or without pay, or a short-term layoff for a definite period. A short-term layoff must meet the requirements for a deferral under R994-403-108b(1)(c).

(3) New work is defined as:

(a) work offered by an employer for whom the individual has never worked;

(b) work offered by an individual's current employer involving duties, terms, or conditions substantially different from those agreed upon as part of the existing contract of employment; or

(c) reemployment offered by an employer for whom the individual is not working at the time the offer is made, whether the conditions of employment are the same or different from the previous job.

R994-405-308. Burden of Proof.

(1) The statute requires that the wage, hours, and other conditions of the work shall not be substantially less favorable to the individual than those prevailing for similar work in the area in order to be considered suitable work. The Department has the burden to prove that the work offered meets these minimum standards before benefits can be denied. Before benefits may be denied, the Department must show:

(a) the job was available,

(b) the claimant had an opportunity to learn about the conditions of employment,

(c) the claimant had an opportunity to apply for or accept the job, and

(d) the claimant's action or inaction resulted in the failure to obtain the job.

(2) When the Department has established all of the elements in paragraph (1) of this subsection, a disqualification must be assessed unless it can be established that the work was not suitable, that there was good cause for failing to obtain the job, or the claimant or the Department can show that a disqualification would be against equity and good conscience.

(3) The Department has the option, but not the obligation, to review Department records concerning the claimant's wages and work history to determine suitability in cases where the claimant has not provided a reason for refusing the job, or the claimant's stated reason for refusing the job was for a reason other than suitability. In these cases, department intervention would only be appropriate if the available information establishes that a denial would be an affront to fairness.

R994-405-309. Period of Ineligibility.

(1) The disqualification period imposed under Subsection 35A-4-405(3) shall include the week in which the claimant's action or inaction resulted in the failure to obtain employment or the first week the work was available, whichever is later. The disqualification shall continue until the claimant has performed services in bona fide covered employment and earned wages equal to at least six times his or her WBA.

(2) A disqualification will be assessed as of the effective date of a new claim if the claimant refused an offer of suitable work after his or her last job ended and prior to the effective date of the claim. A disqualification will also be assessed as of the reopening date, if the claimant refused an offer of suitable work after his or her last job ended and prior to the reopening date.

(3) Disqualifications assessed in a prior benefit year shall continue into the new benefit year and until the claimant has earned six times his or her WBA in subsequent bona fide covered employment.

R994-405-310. Good Cause.

(1) Good cause for failing to accept available work is established if the work is not suitable or accepting the job would cause hardship which the claimant was unable to overcome. Hardship can only be established if the claimant can show that the employment would result in actual or potential physical, mental, economic, personal, or professional harm.

(2) Good cause is limited to circumstances which were beyond the claimant's control or were compelling and reasonable.

(3) A claimant may have good cause for failing to obtain employment due to personal circumstances if acceptance of the employment would cause a substantial hardship and there are no reasonable alternatives. However, if a personal circumstance prevents the acceptance of suitable employment, there is a presumption the claimant is not able or available for work.

(4) Good cause is not established if a claimant refuses suitable work because the work will interfere with school or training. Claimants attending school full-time with Department approval are not required to seek work.

R994-405-311. Equity and Good Conscience.

A claimant will not be denied benefits for failing to apply for or accept work if it would be contrary to equity and good conscience, even though good cause has not been established. If there were mitigating circumstances and a denial of benefits would be unreasonably harsh or an affront to fairness, benefits may be allowed. A mitigating circumstance is one that may not be sufficiently compelling to establish good cause, but would motivate a reasonable person to take similar action. In order to establish eligibility under the equity and good conscience standard the following elements must be shown:

(1) Reasonableness.

The claimant must have acted reasonably and the refusal of work was logical, sensible, or practical.

(2) Continuing Attachment to the Labor Market.

The claimant must show evidence of a genuine and continuing attachment to the labor market by making an active and consistent effort to become reemployed. The claimant must have a realistic plan for obtaining suitable employment and show evidence of employer contacts prior to, during, and after the week the job in question was available.

KEY: unemployment compensation, employment, employee's rights, employee termination

[July 19, ]2004

Notice of Continuation June 27, 2002

35A-4-502(1)(b)

35A-1-104(4)

35A-4-405

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at spixton@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.